IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)

Transcription

1 Court File No: IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA) BETWEEN: JOHN MICHAEL MCCORMICK -and- APPELLANT (Respondent) FASKEN MARTINEAU DUMOULIN LLP -and- RESPONDENT (Appellant) ALBERTA HUMAN RIGHTS COMMISSION, ERNST & YOUNG LLP, KPMG LLP, DELOITTE LLP, PRICEWATERHOUSECOOPERS LLP, BDO CANADA LLP, GRANT THORNTON LLP, YOUNG BAR ASSOCIATION OF MONTREAL, CANADIAN HUMAN RIGHTS COMMISSION, ONTARIO HUMAN RIGHTS COMMISSION and BRITISH COLUMBIA HUMAN RIGHTS TRIBUNAL INTERVENERS FACTUM OF THE INTERVENER CANADIAN HUMAN RIGHTS COMMISSION Pursuant to Rule 42 of the Rules of the Supreme Court of Canada Philippe Dufresne / Valerie Phillips CANADIAN HUMAN RIGHTS COMMISSION 344 Slater Street, 8 th Floor Ottawa, ON K1A 1E1 Tel: (613) / Fax: (613) philippe.dufresne@chrc-ccdp.gc.ca valerie.phillips@chrc-ccdp.gc.ca Counsel for the Intervener, Canadian Human Rights Commission

2 D. Murray Tevlin / John Chesko TEVLIN GLEADLE LLP Beach Avenue Vancouver, BC V6E 1T7 Tel: (604) Fax: (604) mtevlin@tevlingleadle.com Counsel for the Appellant, John Michael McCormick Justin Dubois HEENAN BLAIKIE LLP Metcalfe Street Ottawa, ON K1P 6L5 Tel: (613) Fax: (613) jdubois@heenan.ca Agent for the Appellant, John Michael McCormick Irwin G. Nathanson Q.C. NATHANSON SCHACHTER & THOMPSON LLP Howe Street Vancouver, BC V6Z 2M4 Tel: (604) Fax: (604) inathanson@nst.bc.ca Counsel for the Respondent, Fasken Martineau DuMoulin LLP Sally A. Gomery NORTON ROSE FULBRIGHT CANADA LLP O Connor Street Ottawa, ON K1P 1A4 Tel: (613) Fax: (613) sally.gomery@nortonrose.com Agent for the Respondent, Fasken Martineau DuMoulin LLP Katherine A. Hardie BRITISH COLUMBIA HUMAN RIGHTS TRIBUNAL Robson Street Vancouver, BC V6Z 5J3 Tel: (604) Fax: (604) Counsel for the Intervener, British Columbia Human Rights Tribunal Marie-France Major SUPREME ADVOCACY LLP 397 Gladstone Avenue, Suite 1 Ottawa, ON K2P 0Y9 Tel: (613) Ext: 102 Fax: (613) mfmajor@supremeadvocacy.ca Agent for the Intervener, British Columbia Human Rights Tribunal

3 Audrey Dean Alberta Human Rights Commission No. 700 Standard Life Centre Jasper Avenue Edmonton, AB T5J 4R7 Tel: (780) Fax: (780) Counsel for the Intervener, Alberta Human Rights Commission Henry S. Brown, Q.C. Gowling Lafleur Henderson LLP Elgin Street P.O. Box 466, Stn D Ottawa, ON K1P 1C3 Tel: (613) Fax: (613) henry.brown@gowlings.com Agent for the Intervener, Alberta Human Rights Commission Peter H. Griffin / Rory Gillis LENSZNER SLAGHT ROYCE SMITH GRIFFIN LLP Adelaide Street West Toronto, ON M5H 3P5 Tel: (416) Fax: (416) Counsel for the Interveners, Ernst & Young LLP, KPMG LLP, Deloitte LLP, PriceWaterhouseCoopers LLP, BDO Canada LLP and Grant Thornton LLP Brian C. Elkin LAVERY, DE BILLY Albert Street Ottawa, ON K1R 7X7 Tel: (613) Fax: (613) belkin@lavery.qc.ca Agent for the Interveners, Ernst & Young LLP, KPMG LLP, Deloitte LLP, PriceWaterhouseCoopers LLP, BDO Canada LLP and Grant Thornton LLP Vincent de l Etoile LANGLOIS KRONSTROM DESJARDINS rue Sherbrooke West Montreal, QC H3A 3L6 Tel: (514) Fax: (514) Vincent-deletoile@lkd.ca Counsel for the Intervener, Young Bar Association of Montreal Frederick Langlois DEVEAU, BOURGEOIS, GAGNE, HEBERT & ASSOCIEES, SENCRI 8-867, boulevard Saint-René Ouest Gatineau, QC J8T 7X6 Tel : (819) Fax : (819) flanglois@deveau.qc.ca Agent for the Intervener, Young Bar Association of Montreal

4 Reema Khawja / Anthony D. Griffin ONTARIO HUMAN RIGHTS COMMISSION Public Interest Inquiries Branch 180 Dundas Street West, 8 th Floor Toronto, ON M7A 2R9 Tel: (416) Fax: (416) Counsel for the Intervener, Ontario Human Rights Commission Matthew Estabrooks GOWLING LAFLEUR HENDERSON LLP Elgin Street P.O. Box 466, Stn. A Ottawa, ON K1P 1C3 Tel: (613) Fax: (613) matthew.estabrooks@gowlings.com Agent for the Intervener, Ontario Human Rights Commission

5 - i - TABLE OF CONTENTS Page PART I OVERVIEW AND STATEMENT OF FACTS... 1 PART II QUESTIONS IN ISSUE... 2 PART III STATEMENT OF ARGUMENT...2 (i) Human Rights Laws Enshrine Fundamental, Quasi-Constitutional Rights that should not be found to be Inapplicable Based on Technical Distinctions...2 Purposive Interpretation...3 Creating a Legal Void...4 (ii) Interpretation of Employment Provisions in Human Rights Statutes should be Broad and Purposive in Order to Remedy Discrimination in Working Environments...4 Consistent Interpretation of Human Rights Statutes...6 (iii)a Narrow Interpretation of Employment Provisions in Human Rights Statutes could have the Effect of Denying many Canadian Workers access to Human Rights Redress when they have been Victims of Discrimination...8 Conclusion...9 PART IV SUBMISSIONS ON COSTS...9 PART V ORDER SOUGHT...9 PART VI TABLE OF AUTHORITIES...10 PART VII STATUTES DIRECTLY AT ISSUE Canadian Human Rights Act, RSC 1985, c. H-6, sections 2 and Human Rights Code, R.S.B.C. 1996, c. 210, section

6 Court File No: IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE BRITISH COLUMBIA COURT OF APPEAL) BETWEEN: JOHN MICHAEL MCCORMICK -and- APPELLANT (Respondent) FASKEN MARTINEAU DUMOULIN LLP - and - RESPONDENT (Appellant) ALBERTA HUMAN RIGHTS COMMISSION, ERNST & YOUNG LLP, KPMG LLP, DELOITTE LLP, PRICEWATERHOUSECOOPERS LLP, BDO CANADA LLP, GRANT THORNTON LLP, YOUNG BAR ASSOCIATION OF MONTREAL, CANADIAN HUMAN RIGHTS COMMISSION, ONTARIO HUMAN RIGHTS COMMISSION and BRITISH COLUMBIA HUMAN RIGHTS TRIBUNAL INTERVENERS FACTUM OF THE INTERVENER CANADIAN HUMAN RIGHTS COMMISSION Pursuant to Rule 42 of the Rules of the Supreme Court of Canada PART I OVERVIEW AND STATEMENT OF FACTS 1. The Canadian Human Rights Commission (the "Commission") intervenes in support of the propositions that: (i) human rights laws enshrine fundamental, quasi-constitutional rights, that should not be found to be inapplicable based on technical distinctions; (ii) the interpretation of employment provisions in human rights statutes should be broad and purposive in order to remedy discrimination in working environments; and, (iii) a narrow interpretation of employment provisions in human rights statutes could have the effect of denying many Canadian workers access to human rights redress when they have been victims of discrimination.

7 2 2. The Commission relies on the facts as set out by the parties, and notes that they appear to be in substantial agreement on those facts. The Commission takes no position on whether additional facts would also be required to appropriately decide the human rights complaint. PART II QUESTIONS IN ISSUE 3. This appeal raises questions about the proper interpretation of certain employment related provisions of the British Columbia Human Rights Code 1, a remedial provincial human rights statute. The parties disagree as to whether the Appellant, Mr. McCormick, an equity partner with the Respondent, Fasken Martineau DuMoulin LLP ( Fasken ) was an employee within the meaning of the B.C. Code. The Commission intervenes in these proceedings to respond to these questions and views. PART III STATEMENT OF ARGUMENT (i) Human Rights Laws Enshrine Fundamental, Quasi-Constitutional Rights that should not be found to be Inapplicable Based on Technical Distinctions 4. Human rights are fundamental rights that entitle Canadians to a life of equality, dignity, and respect. 2 These entitlements come with corresponding responsibilities. While there are different human rights instruments domestically and internationally, federal and provincial statutory human rights laws are primarily anti-discrimination laws that apply to working environments, the provision of services and accommodation. 5. The purpose of statutory human rights laws, including the Canadian Human Rights Act 3 and the B.C. Code, is to create an inclusive society that allows Canadians to fully engage in the life they wish to lead without the limitations and injury caused by discrimination. These purpose statements include powerful messages of the legislative vision behind the statutes. The CHRA states that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have... without being hindered by 1 Human Rights Code, R.S.B.C. 1996, c. 210 ( B.C. Code ). 2 Canadian Human Rights Commission, What are human rights?,online: Canadian Human Rights Commission < 3 Canadian Human Rights Act, R.S., 1985, c. H-6 ( CHRA ).

8 3 discriminatory practices. 4 The B.C. Code describes the purpose as fostering a society in which there are no impediments to full and free participation in the economic, social, political and cultural life. 5 Parliament and the British Columbia legislature unequivocally express that these Acts are meant to prevent discrimination from occurring and to provide redress for when it does. The interpretation of these statutes must give life to these very ideals. Purposive Interpretation 6. Many decisions help guide the purposive approach to interpreting human rights legislation. For example, the Federal Court of Appeal stated in Canada (Attorney General) v. Rosin that: "(t)he essential aim of the wording is to forbid discrimination by enterprises which purport to serve the public." 6 In his concurring reasons in Gould v. Yukon Order of Pioneers, Justice Iaccobuci stated that: (a) true purposive approach looks at the wording of the statute itself, with a view to discerning and advancing the legislature's intent. Our task is to breathe life, and generously so, into the particular statutory provisions that are before us This Court has consistently held that human rights legislation is fundamental and quasiconstitutional and should therefore be interpreted in a broad, liberal and purposive manner that best advances its broad underlying policy considerations. 8 Importantly, this Court has stressed that human rights laws must be applied in a manner that is procedurally practical and that makes them accessible to the broader Canadian public. 9 Neither human rights tribunals nor the courts should "inspect these statutes with a microscope, but should (...) give them a full, large and liberal meaning consistent with their favoured status in the lexicon of Canadian legislation" CHRA, supra at s B.C. Code, supra at s Canada (Attorney General) v. Rosin, [1991] 1 F.C. 391 (F.C.A.) at para 7 ( Rosin ) [CHRC s BoA, Tab 3]. 7 Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571 at para. 7 ( Gould ) [CHRC s BoA, Tab 6]. 8 For examples, see: C.N.R. v. Canada (Human Rights Commission), [1987] 1 S.C.R at pp [CHRC s BoA, Tab 4]; Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513 at paras (per Bastarache J., for the majority) [Appellant s BoA, Tab 31]; Battlefords and District Cooperative Ltd. v. Gibbs, [1996] 3 S.C.R. 566 at para. 18 [CHRC s BoA, Tab 1]. 9 Tranchemontagne, supra at para 33; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157 at paras [CHRC s BoA, Tab 9]. 10 Rosin, supra, at para 15, per Linden J.A., quoted with approval by Lamer C.J. in University of British Columbia v. Berg, [1993] 2 S.C.R. 353, at p. 373 ( Berg ) [CHRC s BoA, Tab 13].

9 4 8. The purpose clauses in both the CHRA and the B.C. Code demonstrate a clear legislative intention to allow Canadians to fully participate in society, including in the workforce, without being hindered by discrimination. Applying this Court s guidance, the proper interpretation of employment relationships under statutory human rights codes would be one that allows for the eradication of discriminatory impediments in most, if not all, working environments. Creating a Legal Void 9. This Court has cautioned that, given their fundamental nature, human rights can only be limited in very specific circumstances and cannot be casually abandoned. This is particularly the case if the result would be a gap in the law. Exceptions to the application of human rights laws to Canadians should be explicitly stated by the legislature. 10. In Insurance Corporation of British Columbia v. Heerspink this Court stated: as it [the B.C. Code] is a public and fundamental law, no one, unless clearly authorized by law to do so, may contractually agree to suspend its operation and thereby put oneself beyond the reach of its protection. 11 In this same decision, Justice Lamer referred to statutory human rights codes as...the comprehensive statement of the human rights of the people living in that jurisdiction and that... short of that legislature speaking to the contrary in express and unequivocal language in the Code or in some other enactment, it is intended that the Code supersede all other laws when conflict arises. 12 (ii) Interpretation of Employment Provisions in Human Rights Statutes should be Broad and Purposive in Order to Remedy Discrimination in Working Environments 11. The interpretation of employment provisions in Canadian human rights statutes to date has generally been broad and purposive in order to remedy discrimination in working environments. As stated above, the purpose of statutory human rights codes is to remove discriminatory barriers in order to allow individuals to fully participate in Canadian society. This 11 Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145 at p. 158 ( Heerspink ) [Appellant s BoA, Tab 16]. 12 Ibid at pp

10 5 includes the ability to access basic human necessities such as work, required services and accommodation free from discrimination. 12. The critical importance of the ability to access the workforce was discussed by former Chief Justice Dickson (dissenting in the result) in Reference Re Public Service Employee Relations Act in which he stated: Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person's dignity and self respect. 13 [Emphasis added] 13. Discrimination-free access to the work place is a central pillar of statutory human rights law. A purposive interpretation of the terms employee, employment or employ in the case law is necessary for the remedying of discrimination in work environments, as well as removing barriers to entering the workforce. 14. This discussion should also be situated in its international context. Canada is a member of the International Labour Organization (ILO) which is a tripartite agency of the United Nations that consists of government, employer, and worker representatives. It aims to promote the rights of workers, encourage decent employment opportunities, enhance social protection and strengthen dialogue on work-related issues. 14 In 2006 the ILO s International Labour Conference adopted the Employment Relationship Recommendation 15 which provides guidance in the determination of the existence of an employment relationship. 15. While derived from the labour context, as opposed to the human rights context, the Employment Recommendation section on the Determination of the Existence of an 13 Reference Re Public Service Employee Relations Act, [1987] 1 S.C.R. 313 at p. 368 [CHRC s BoA, Tab 10]. 14 International Labour Organization (ILO) Mission and Objectives, online: International Labour Organization (ILO) 15 Employment Relationship Recommendation, 2006 (No. 198), UNILO, 95 th ILC Session, (2006) ( Employment Recommendation ).

11 6 Employment Relationship is informative. In it the ILO provides some key considerations, some of which have been reproduced below: Employment relationships should be determined by the facts relating to the performance of work and the remuneration of the worker, notwithstanding how the relationship is characterized in any contrary arrangement, contractual or otherwise, that may have been agreed between the parties. [Emphasis Added] 16 Members should provide for a legal presumption that an employment relationship exists where one or more relevant indicators is present. 17 These indicators include: the worker is integrated into the organization of the enterprise; work is carried out personally by the worker; work is carried out within specific working hours or at a workplace specified or agreed by the party requesting the work; work is of a particular duration and has a certain continuity; requires the worker's availability; periodic payment of remuneration to the worker; the fact that such remuneration constitutes the worker's sole or principal source of income; recognition of entitlements such as weekly rest and annual holidays etc. 18 Consistent Interpretation of Human Rights Statutes 16. The need for consistency in interpretation is between provincial, territorial and federal human right statutes. In Gould, supra and in Berg, supra, this Court discussed the importance of developing an interpretation that is consistent with other Canadian human rights statutes. The Court noted the need to develop an interpretation of human rights statutes that is consistent with and reinforced by the common purpose that underlies these provisions: the elimination of discrimination in enterprises that serve the public The CHRA defines employment as including...a contractual relationship with an individual for the provision of services personally by the individual. 20 Despite some differences 16 Employment Recommendation, supra at para Employment Recommendation, supra at para Employment Recommendation, supra at para Gould, supra at para CHRA, supra at s. 25.

12 7 in the statutory definitions of employment, the case law has evolved in a fairly consistent manner between the two jurisdictions. 18. The two key federal cases relied on by Mr. McCormick are Rosin, supra and Canadian Pacific Limited v. Canada (Human Rights Commission). 21 In Rosin, supra, the Federal Court of Appeal found that an Army cadet removed from a parachuting course because he was missing an eye was in an employment relationship with the Armed Forces for the purposes of the CHRA. The Court found that since human rights legislation is to be interpreted in a manner that advances its broad purposes; "employ" may be used in the sense of "utilization" by an employer. The Court considered several aspects including control, remuneration and benefit to the employer. With regard to control, it was sufficient that the cadet wore a uniform, obeyed rules and followed commands. Receiving an honorarium, room and board was considered remuneration given that the human rights context is more flexible. Lastly, a benefit existed as cadets are used as a recruitment tool for the employer. 19. Similarly, in Fontaine, supra, the Federal Court of Appeal interpreted employment to be synonymous with utilization by an employer. This case involved a contract caterer with HIV/AIDS who suffered discrimination while working on a federal railway. The Court found that the CHRA applies to someone who has a considerable degree of control or influence over the actual employee. It indicated that the term "employ" should be given a broader meaning than that afforded by the master/servant relationship and should be interpreted to advance the purposes of human rights statutes. 20. In addition, it is worth noting this Court s statement in Robichaud v. Canada (Treasury Board). 22 In this case, the Court specifically rejected the application of the more rigid tort law concept of vicarious liability when considering the liability to employers under the CHRA stating that (i)t would appear more sensible and more consonant with the purpose of the Act to interpret the phrase "in the course of employment" as meaning work- or job-related Canadian Pacific Limited v. Canada (Human Rights Commission), [1991] 1 F.C (F.C.A.) ( Fontaine ) [CHRC s BoA, Tab 5]. 22 Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84 ( Robichaud ) [Appellant s BoA, Tab 28]. 23 Robichaud, supra at p. 92.

13 8 Overall, these cases support a broad reading of employment terms in human rights statutes in order to give effect to the remedial nature of the legislation. (iii) A Narrow Interpretation of Employment Provisions in Human Rights Statutes could have the Effect of Denying many Canadian Workers access to Human Rights Redress when they have been Victims of Discrimination 21. Adopting a narrow interpretation of the term employment would mean that the manner in which organizations structure their relationship with workers would determine their access to human rights protection. It would effectively limit or eliminate completely the authority of human rights adjudicative bodies to remove systemic discriminatory barriers from some working environments. For many workers, there would be no human rights recourse. 24 As such, a narrow interpretation of employment relationships would be inconsistent with the spirit and purpose of human rights laws. 22. The jurisprudence to date has recognized a variety of working relationships under the employment provisions of human rights statutes. It is vital that the repercussions of this Court s decision in the instant case be considered. The following are many examples of non-traditional employment relationships that have been recognized by Tribunals and Courts which may be impacted by this decision: Consultants, contract workers and sub-contractors (e.g. Fontaine, supra and Lapierre 25 ); Volunteers (e.g. Nixon 26 ); Trainees (e.g. Rosin, supra); Other professional relationships like rights to practice in a hospital (e.g. Sinha 27 ); Shares given as part of remuneration making employee also part owner (e.g. Sharma 28 ); 24 Seneca College v. Bhadauria, [1981] 2 S.C.R. 181 [CHRC s BoA, Tab 11]; Honda Canada Inc. v. Keays, [2008] 2 S.C.R. 362, paras 64 to 67 [CHRC BoA, Tab 7]. 25 Canada (Attorney General) v. Lapierre, [2004] F.C.J. No. 740, 2004 FC 612 [CHRC s BoA, Tab 2]. 26 Nixon v. Vancouver Rape Relief Society, 42 C.H.R.R. D/20, at para. 72 [CHRC s BoA, Tab 8]. 27 Sinha v. Eastern Shore Memorial Hospital (1996), 25 C.H.R.R. D/263 [CHRC s BoA, Tab 12]. 28 Sharma v. Yellow Cab Company (1983), 4 C.H.R.R. D/1432 [Appellant s BoA, Tab 30].

14 9 If these types of working arrangements were removed from the authority of human rights commissions and tribunals, it is possible that systemic barriers that exist in some workplaces could not be challenged. For example, black men could be excluded from holding the highest positions in a law firm; pregnant woman could be fired, demoted or denied promotional opportunities simply because they owned shares in a corporation as part of their pay; victims of sexual harassment in a pre-employment training setting would have no recourse; a volunteer trying to gain Canadian experience could be prohibited from practicing religious observances; and persons with disabilities could be excluded from certain aspects of the workforce instead of being given the opportunity to work with some accommodation. Conclusion 23. The Commission submits that a purposive interpretation of employment provisions in human rights statutes would be one that allows for the removal of barriers to entering or remaining in the workforce. This would extend human rights protection to most if not all Canadian workers and allow for full participation in Canadian life as Parliament and the legislatures have intended. PART IV SUBMISSIONS ON COSTS 24. The Commission is not seeking costs in this matter, and submits that no costs should be awarded against it. PART V ORDER SOUGHT 25. The Commission takes no position on the outcome of the appeal itself, other than to respectfully request that the reasons from this Court address the principles raised herein. 26. The Commission seeks leave to present oral argument at the hearing of the Appeal, and requests 10 minutes for this purpose. ALL RESPECTFULLY SUBMITTED this 1 st day of November, Philippe Dufresne / Valerie Phillips Counsel for the Intervener, Canadian Human Rights Commission

15 10 PART VI TABLE OF AUTHORITIES Paragraph s referred Footnote referred Legislation Canadian Human Rights Act, RSC 1985, c. H-6, sections 2 and 25 5, 17 3, 4, 20 Human Rights Code, R.S.B.C. 1996, c. 210, section 3 3, 5, 8 1, 5 Caselaw Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R Canada (Attorney General) v. Rosin, [1991] 1 F.C. 391 (C.A.) 6, 18, 22 6 Canada (Attorney General) v. Lapierre, [2004] F.C.J. No. 740, 2004 FC 612 Canadian National Railway v. Canada (Human Rights Commission), [1987] 1 S.C.R Canadian Pacific Limited v. Canada (Human Rights Commission), [1991] 1 F.C (F.C.A.) , 19, Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R , 16 7, 19 Honda Canada Inc. v. Keays, [2008] 2 S.C.R Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R Nixon v. Vancouver Rape Relief Society, 42 C.H.R.R. D/ Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157 Reference Re Public Service Employee Relations Act, [1987] 1 S.C.R Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R , 23 Seneca College v. Bhadauria, [1981] 2 S.C.R

16 11 Sharma v. Yellow Cab Company (1983), 4 C.H.R.R. D/ Sinha v. Eastern Shore Memorial Hospital (1996), 25 C.H.R.R. D/263 Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R , 9 University of British Columbia v. Berg, [1993] 2 S.C.R , Treaties and Other International Instruments International Labour Organization (ILO) Mission and Objectives, online: International Labour Organization (ILO) Employment Relationship Recommendation, 2006 (No. 198), UNILO, 95 th ILC Session, (2006) ( Employment Recommendation ) , 15 15, 16, 17, 18 Secondary Sources and Other Materials Canadian Human Rights Commission, What are human rights?,online: Canadian Human Rights Commission < 4 2

17 12 PART VII STATUTES DIRECTLY AT ISSUE Canadian Human Rights Act, R.S.C., 1985, c. H-6 Purpose of Act 2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered. Definitions 25. In this Act, employment «emploi» employment includes a contractual relationship with an individual for the provision of services personally by the individual; Loi canadienne sur les droits de la personne L.R.C. (1985), ch. H-6 Objet 2. La présente loi a pour objet de compléter la législation canadienne en donnant effet, dans le champ de compétence du Parlement du Canada, au principe suivant : le droit de tous les individus, dans la mesure compatible avec leurs devoirs et obligations au sein de la société, à l égalité des chances d épanouissement et à la prise de mesures visant à la satisfaction de leurs besoins, indépendamment des considérations fondées sur la race, l origine nationale ou ethnique, la couleur, la religion, l âge, le sexe, l orientation sexuelle, l état matrimonial, la situation de famille, la déficience ou l état de personne graciée. Définitions 25. Les définitions qui suivent s appliquent à la présente loi. «emploi» employment «emploi» Y est assimilé le contrat conclu avec un particulier pour la fourniture de services par celui-ci.

18 13 Human Rights Code, R.S.B.C. 1996, Chapter 210 Purposes 3. The purposes of this Code are as follows: (a) to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia; (b) to promote a climate of understanding and mutual respect where all are equal in dignity and rights; (c) to prevent discrimination prohibited by this Code; (d) to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code; (e) to provide a means of redress for those persons who are discriminated against contrary to this Code;